Mabury Ranch
HOA v. Peterson
Filed 1/30/14
Mabury Ranch HOA v. Peterson CA4/3
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE MABURY RANCH HOMEOWNERS
ASSOCIATION,
Plaintiff and Respondent,
v.
JAMES R. PETERSON,
Defendant and Appellant.
G044759
(Super. Ct. No. 30-2008-00115161)
O P I N I O N
Appeal
from a judgment of the Superior Court of
Orange County, James
Di Cesare, Judge. Affirmed.
James
R. Peterson, in pro. per.; Victor E. Hobbs for Defendant and Appellant.
Slaughter
& Reagan, William M. Slaughter and Gabriele M. Lashly for Plaintiff and
Respondent.
* * *
The
Mabury Ranch Homeowners Association (the Association) successfully sued a
homeowner regarding maintenance of his property and related issues. Due to an untimely
currently before this court is whether the trial court properly granted the
Association $160,000 in attorney fees
and $7,213 in costs as a prevailing party.
Because Peterson has not established the trial court committed error, we
affirm.
I
FACTS
In sum, the Association
sued James Peterson for failing to maintain his home. The Association received a judgment in its
favor in December 2010. On January 2011,
the Association filed a motion seeking $235,247 in attorney fees, plus $4,800
in additional attorney fees and $7,213 in costs. Peterson opposed. On February 3, 2011, the court granted the Association $160,000 in attorney fees and $7,213
in costs, stating that “[i]t is undisputed that plaintiff prevailed in this
action.†The court calculated attorney
fees at $185 per hour. The court also
denied the Association’s request for prelitigation fees of $10,199.
Peterson appealed, both
from the underlying judgment and from
the attorney fees order. On March 29, 2013, in response to the Association’s motion to dismiss the appeal, we
filed an order dismissing the appeal “as untimely to the extent it purports to
appeal from the judgment filed on December 3, 2010. Appellant’s notice of
appeal, filed on February 4, 2011 is more than 60
days after respondent’s service of notice of entry of judgment, which service
occurred on December
3, 2010.â€
We noted that we could, however, review the issue of attorney fees and
costs. On April 26, we denied Peterson’s
petition for rehearing on the order. On June
19, Peterson filed a “corrected†reply brief, purportedly in response to the
court’s orders.
name="_ftnref1" title="">[1]
II
DISCUSSION
We first note that in
his reply brief, refiled after we issued the order granting the motion to
dismiss, Peterson purports to incorporate by reference his entire argument
regarding attorney fees and costs in the trial court. This is improper. “‘[I]t is entirely inappropriate for an appellate brief to incorporate by reference documents and arguments from the
proceedings below. . . .’ [Citations.] ‘An appellant cannot rely on incorporation of
arguments in the appellate briefs.’ [Citation.]†(In re
Groundwater Cases (2007) 154 Cal.App.4th 659, 690, fn.18.) Further, “[i]t
is well established, [that], this practice does not comply with rule
8.204(a)(1)(B) of the California Rules of Court, which requires an appellate brief ‘support
each point by argument and, if possible, by citation of authority.’†(
(2007) 149 Cal.App.4th 285, 290, fns. omitted.)
We therefore decline to consider any argument not actually briefed. (Id.
at p. 291.)
Moreover, Peterson’s
reply brief borders on incoherence. He
never squarely addresses either the issue of whether the Association is
entitled to attorney fees under law or contract or the amount of those
fees. Instead, under the guise of
“invited error caused by attorney’s work which caused Court Error,†he seeks to
use the attorney fee issue as a reason to reverse the entire judgment. “The Appellant respectfully requests that the
lawsuit be dismissed with prejudice . . . .â€
In short, Peterson’s
briefs do not discuss, with reasoned argument and citations, the only issues he
was permitted to pursue. At oral
argument, he again addressed issues relating to the validity of the underlying
judgment, which is now final, rather than the question of attorney fees and
costs. We would be well within the scope
of proper appellate procedure to deem his entire argument waived. (Jones
v. Superior Court (1998) 26 Cal.App.4th 92, 99.) Instead, we will briefly address the relevant
points relating to attorney fees and costs.
The first question is
whether the Association was legally entitled to attorney fees. Article XIV, Section 9 of the Association’s
CC&R’s states: “In the event action
is instituted to enforce any of the provisions contained in this Declaration,
the party prevailing in such action shall be entitled to recover from the other
party thereto and as part of the judgment, reasonable attorneys’ fees and costs
of suit.†Thus, under this provision,
the Association is entitled to fees under ordinary theories of contract law and
Civil Code section 1717. Further, Civil
Code section 1354, subdivision (c), provides that “In an action to enforce the
governing documents, the prevailing party shall be awarded reasonable
attorney’s fees and costs.†As the trial
court noted, “[i]t is undisputed that plaintiff prevailed in this action.†Thus, as the prevailing party, the Association
is entitled to attorney fees.
The only other question
is whether the fees awarded were reasonable.
Despite Peterson’s assertions of “invited error caused by attorney’s
work which caused Court Error,†he offers no authority, and no evidence other
than his opinion, as to why this should reduce the attorney fee award.
Indeed, the Association, in its motion below, offered admissible
evidence to establish that if anything increased the amount of attorney fees in
this case, it was Peterson’s intransigence.
The
trial court determined that $185 per hour was reasonable, although the Association’s
counsel’s declaration stated he ordinarily received $220 to $240 per hour. Peterson offered no evidence to show that
either the rate nor the number of hours worked was unreasonable. He similarly offers no argument on
costs. We find no error with respect to
either award.
III
DISPOSITION
The
judgment is affirmed. The Association is
entitled to its costs on appeal. The
Association may file an appropriate motion for attorney fees on appeal with the
trial court.
MOORE,
J.
WE CONCUR:
O’LEARY, P. J.
IKOLA, J.
name="_ftn1" title="">[1] On June 20, 2013, after we issued
our order granting the Association’s motion to dismiss the appeal with the
exception of attorney fees and costs, Peterson filed a motion to augment the
record with documents regarding the HOA’s bylaws, election rules, an election
tally sheet, and photographs of Peterson’s residence. Although these documents are not pertinent to
the only issue remaining on appeal, the motion is unopposed, and we therefore
grant it.
